R v Hunter - [2022] SASCA 136

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v HUNTER
[2022] SASCA 136
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
20 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENCES RELATING TO PARTICIPATION IN CRIMINAL ORGANISATIONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY
The respondent pleaded guilty to one count of aggravated trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of possessing a prohibited weapon contrary to s 21F of the Summary Offences Act 1953 (SA).
On 11 December 2020, police attended and searched the respondent’s cabin at the Bolivar caravan park after receiving information that he was trafficking methylamphetamine. They located and seized three resealable bags containing methylamphetamine in various quantities (totalling over 95 grams), and other indicia of drug trafficking including glass pipes, tick lists, electronic scales, a heat-sealing machine, mobile phones and cash. Police also located a black taser under the pillow of the respondent’s bed. One of the seized mobile phones contained text messages between the respondent and the president of the Nomads Motorcycle Club in relation the respondent’s membership and involvement in the Nomads, including as a trafficker on their behalf. The respondent's trafficking in a controlled drug was aggravated by reason that it was committed for the benefit of a criminal organisation.
The sentencing judge commenced with a starting point of four years imprisonment for the offence of aggravated trafficking in a controlled drug and one month imprisonment for the offence of possessing a prohibited weapon. These sentences were reduced by 15 per cent and 30 per cent respectively on account of the respondent’s early pleas of guilty, giving a sentence of three years, four months and 25 days imprisonment for the trafficking offence, and 22 days for the offence of possessing a prohibited weapon. These sentences were made cumulative, resulting in an aggregate head sentence of three years, five months and 17 days imprisonment. Non-parole was fixed at a period of one year and 11 months.
The sentencing judge gave one year credit, noting that the respondent had spent 14 days in custody and 19 months on home detention, resulting in a final sentence of two years, five months and 17 days imprisonment, and a non-parole period of one year and one month
As the respondent’s drug trafficking offence was a serious and organised crime offence for the purposes of the Sentencing Act 2017 (SA), the judge was prevented from making a home detention order. However, the sentencing judge found that “exceptional circumstances” existed to warrant a suspension of the respondent’s sentence of imprisonment upon his entry into a bond to be of good behaviour for three years, with supervision by a community corrections officer for a period of one year.
The Director of Public Prosecutions seeks permission to appeal against sentence on three grounds. The first ground complains that the head sentence imposed with respect to both offences was manifestly inadequate. By his second ground, the Director complains that the sentencing judge erred in affording credit for one year for the 14 days in custody and 19 months spent on home detention. The final ground complains that the sentencing judge erred in finding that “exceptional circumstances” existed such that it was appropriate to suspend the respondent’s sentence of imprisonment.
Held (the Court), granting the Director permission to appeal and allowing the appeal:
1. The head sentence was manifestly inadequate and the decision to suspend was erroneous. To allow the sentence to remain would undermine public confidence in the administration of justice notwithstanding hardship to the respondent in being re-sentenced.
2. The sentence is set aside, and the respondent re-sentenced.
Controlled Substances Act 1984 (SA) s 32; Sentencing Act 2017 (SA) ss 26, 71, 96; Summary Offences Act 1953 (SA) s 21F, referred to.
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; Cocks v The Queen [2022] SASCA 21; Davidson v The Queen [2021] SASCA 130; R v Buttigieg (2020) 352 FLR 170; R v Cekic & Ors [2016] SASCFC 26; R v Franceschini (2015) 123 SASR 396; R v Harkin (2011) 109 SASR 334; R v Hicks (1987) 45 SASR 270; R v Jones [2022] SASCA 105; R v Kong (2013) 115 SASR 425 ; R v MJJ; R v CJN (2013) 117 SASR 81; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Pishdari & Ors (2018) 274 A Crim R 91; R v Skinner (2016) 126 SASR 120; R v Taylor [2016] SASCFC 54; R v Tsonis (2018) 131 SASR 416; R v Violi [2015] SASCFC 2; R v Yaroslavceff [2022] SASCA 123; R v Yavuz (2018) 130 SASR 231; R v Young (2016) 126 SASR 41; R v Zefi (2017) 129 SASR 161; Zefi v The Queen [2021] SASCA 15, considered.

R v HUNTER
[2022] SASCA 136
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: The respondent pleaded guilty to one count of aggravated trafficking in a controlled drug,[1] and one count of possessing a prohibited weapon,[2] in relation to offending at Bolivar on 11 December 2020.
[1] Contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
[2] Contrary to s 21F of the Summary Offences Act 1953 (SA).
The respondent was sentenced on 8 August 2022. The trafficking offence, which was aggravated by reason that it was committed for the benefit of a criminal organisation,[3] carried a maximum penalty of a $75,000 fine, imprisonment for 15 years or both. The sentencing judge commenced with a starting point of four years imprisonment for this offence. This was reduced by 15 per cent on account of the respondent’s early plea of guilty, giving a sentence of three years, four months and 25 days imprisonment.
[3] Or for the benefit of two or members of a criminal organisation, or at the direction or in association with a criminal organisation.
For the offence of possessing a prohibited weapon, which carried a maximum penalty of a $20,000 fine, imprisonment for two years or both, the judge started with one month imprisonment. This was reduced by 30 per cent on account of the respondent’s early plea of guilty, giving a sentence of 22 days imprisonment.
These sentences were made cumulative, resulting in an aggregate head sentence of three years, five months and 17 days imprisonment. The judge fixed a non-parole period of one year and 11 months.
Noting that the respondent had spent 14 days in custody and 19 months on home detention, the judge gave one year credit, resulting in a final sentence of two years, five months and 17 days imprisonment, and a non-parole period of one year and one month.[4]
[4] As noted later in these reasons, it appears that the judge slipped in allowing credit of 10 months, rather than the intended 12 months, in respect of the non-parole period.
As the respondent’s drug trafficking offence was a serious and organised crime offence for the purposes of the Sentencing Act 2017 (SA),[5] the judge was prevented from making a home detention order.[6] However, the judge was satisfied that “exceptional circumstances”[7] existed and so suspended the respondent’s sentence of imprisonment upon his entry into a bond to be of good behaviour for three years, with supervision by a community corrections officer for a period of one year.
[5] See the definitions of “serious and organised crime offence” in both ss 71(5) and 96(9) of the Sentencing Act, paragraph (b)(ii) of which includes an aggravated offence under s 32(3) of the Controlled Substances Act.
[6] Sentencing Act, s 71(2)(b)(iii).
[7] Sentencing Act, ss 96(3)(c) and 96(6).
The Director of Public Prosecutions seeks permission to appeal against the sentence imposed on three grounds:
1.the head sentence imposed in respect of both offences was manifestly inadequate;
2.the sentencing judge erred in affording credit of one year for the 14 days in custody and 19 months spent on home detention; and
3.the sentencing judge erred in finding that there were “exceptional circumstances” such that it was appropriate to suspend the respondent’s sentence of imprisonment.
For the reasons that follow, each of these grounds has been made out. The combination of these errors has resulted in a sentence that is not only manifestly inadequate, but so far below the appropriate standard as to warrant a grant of permission to appeal, despite the hardship of exposing the respondent to the prospect of an immediate sentence of imprisonment. Having determined to grant permission to appeal, we would allow the appeal and re-sentence the respondent in the manner set out at the conclusion of these reasons.
Circumstances of the offending
On 11 December 2020, the respondent was living in a caravan park in Bolivar. Police searched his cabin after receiving information that he was trafficking methylamphetamine. Inside the cabin they found three resealable bags, each containing methylamphetamine in the following quantities: (i) 83.6 grams of crystals with a purity of 78 per cent; (ii) 5.27 grams of crystals with a purity of 61 per cent; and (iii) 6.75 grams with a purity of 61 per cent.
The police also found a black taser under the pillow on the respondent’s bed, $720 in cash, two glass pipes, tick lists, two sets of electronic scales, a heat-sealing machine and a mobile phone. Two additional mobile phones and $565 in cash were found in the centre console of the respondent’s car, which was parked in front of his cabin. The respondent had $3,840 in cash in his wallet.
One of the mobile phones found in the respondent’s car was analysed by police. It contained messages between the respondent and the president of the Nomads Motorcycle Club in relation to money owed for the supply of drugs, the quality of the drugs, the distribution of drugs by the respondent, the respondent’s membership of the Nomads, his participation and commitment to the Nomads, and his involvement in trafficking for and on behalf of the Nomads.
As the sentencing judge accepted, the text messages demonstrated that the respondent’s offending was “more than”, or a “step above”, the usual street level dealing seen in the courts. Her Honour explained that a significant amount of money was passing through the respondent’s hands, and that he knew the profits were going back to the Nomads in circumstances where the person with whom he was communicating was bragging about the club being “the richest”. In his messages, the respondent also said that he knew a couple of lads who might be keen to be drivers and runners.
In other words, as the judge found, the respondent was selling the drugs for the Nomads, an outlaw motorcycle gang, knowing that the money he passed on would be used in some way for the purposes of that organisation. He also kept the difference between what he received for selling the drug and what he was required to pass on.
It was accepted that the respondent’s trafficking offending was not isolated; that he had engaged in a course of conduct of similar offending for a period of at least eight weeks prior to his arrest (being the period covered by the text messages recovered from his phone).
There was evidence to the effect that, as at 11 December 2020, 83.6 grams of methylamphetamine, if sold as ounces, was worth between $18,000 and $30,000; and if sold as half balls, between $28,000 and $45,000. If sold as points, the value of the methylamphetamine would have been greater again; and if cut to a lesser purity, yet greater again.
The judge mentioned what the respondent’s counsel submitted was an imbalance of power; that the respondent was relatively young, and had been encouraged into his association with the Nomads, and then his offending, by older members of the club. The respondent was not living a lavish lifestyle at the time of his offending; he was living in a cabin in a caravan park, with very limited assets. It would seem that most of the proceeds that he was keeping from his trafficking were being used to fund his own addiction.
Personal circumstances
The respondent was 25 years of age at the time of his offending, and 27 years of age at the date of sentencing.
His parents separated when he was 10 years of age, with one parent living in Mount Gambier and one in Adelaide. He had an unstable upbringing, and struggled academically and socially.
The respondent left home when he was 15 years of age. For about two years he moved around, staying with various friends. He then lived with an aunt for a while, but soon returned to living with his friends.
The respondent commenced using cannabis in year 10. He fell in with the wrong crowd, and began using ecstasy and then methylamphetamine in his twenties.
As his counsel submitted, the respondent thereafter made several poor life decisions and ended up in trouble with the law. He received a suspended sentence in 2014, following a conviction for some assault and affray offences. Later, in his mid-twenties, he became affiliated with the Nomads. By the time of his offending, he was a fully patched member of the Nomads. As the judge explained, the respondent was young and addicted to drugs, and vulnerable to the influence of others, when he was seduced into his association with, and then membership of, the Nomads, and hence the environment in which he came to offend. He became separated from his family network.
The sentencing judge accepted that the respondent’s arrest for the subject offending served as a wake-up call for him, and that by the time of sentence he was no longer affiliated with the Nomads.
At the time of sentence, the respondent was living with his grandfather as his full-time live-in carer, and was receiving a carer’s allowance.
The sentencing judge noted, with apparent acceptance, defence counsel’s submission that the respondent had not used drugs since his arrest. The respondent started the Matrix program, but was unable to complete it due to his commitments in caring for his grandfather.
The respondent also engaged in counselling with OARS from April 2021. The sentencing judge received a report from OARS stating that the responded had engaged respectfully, reflectively and proactively with his case manager. He undertook counselling relating to finances, accommodation and drug abstinence. The respondent was then transferred to one-on-one drug and alcohol counselling with Mission Australia. By the time of sentence he had completed 10 out of 12 sessions. The expectation was that once he had completed those sessions, he would then commence further sessions with a psychologist under a mental health plan.
The sentencing judge received letters from the respondent’s stepfather and brother stating that they were both very supportive of him. The former described the respondent as a reliable, hard-working and thoughtful person. The latter suggested that he was on the right path for a better future. The judge was also told that the respondent had re-established a relationship with his sister.
Sentencing remarks
In her sentencing remarks, the judge outlined the circumstances of the offending, and the respondent’s personal circumstances, in terms similar to the above.
The sentencing judge said that in sentencing the respondent for his offending, the most important factor was the protection of the safety of the community. Her Honour explained that the distribution of illegal drugs threatens the safety of the community, noting that methylamphetamine is an addictive and dangerous drug which ruins the lives of users and the people around them.
The judge went on to explain:
Your offending was not isolated, it was against the background of a course of conduct dating back for at least a couple of months. It is made more serious because of the level at which you were dealing, which very much relates to the connection with the motorcycle gang.
General deterrence is also an important factor. The sentence must deter others from selling drugs, particularly in the context of making profits for motorcycle gangs.
The sentence must also deter you. I consider that personal deterrence is not such a significant factor in your case because of your genuine endeavours since this offending to get back on the right track. The sentence must also promote your rehabilitation.
The judge then imposed the sentence described at the outset of these reasons. It will be necessary later in these reasons to address the judge’s remarks in relation to credit for time spent in custody and on home detention, and her basis for finding exceptional circumstances warranting suspension of the respondent’s sentence of imprisonment. However, it is convenient to commence with a consideration of the head sentence imposed by her Honour.
Head sentence for the aggravating trafficking
The Director contends that the head sentence imposed for the offence of aggravated trafficking in a controlled drug, which carried a maximum penalty of a fine of $75,000, imprisonment for 15 years or both, was manifestly inadequate. In particular, the Director challenges the adequacy of the sentencing judge’s starting point of four years imprisonment.
The principles governing manifest inadequacy in a sentence are well known, and need not be repeated.
The Director’s overarching submission is that the sentencing judge’s starting point was so low as to fall outside the permissible range having regard to the standard referred to in R v Young,[8] the aggravating factor and the weight it had to attract, the prevalence of methylamphetamine trafficking, the specific nature of the respondent’s trafficking, the fact that the respondent’s trafficking was not isolated, and the need for general deterrence.
[8] R v Young (2016) 126 SASR 41.
The great social harm caused by the trafficking of illicit drugs had been addressed by several decisions of this Court.[9] As recognised by the maximum penalties enacted by Parliament, such offending requires a strong sentencing response. Whilst the rehabilitation of offenders, and their personal circumstances more generally, remain important considerations in the sentencing process, general deterrence must be given significant weight in balancing the competing sentencing objectives. That is particularly so in cases involving commercial trafficking.
[9] See, for example, R v Kong (2013) 115 SASR 425 at [90]-[92] (Kourakis CJ, Sulan and David JJ).
In R v Young, Kourakis CJ outlined the features relevant to an evaluation of the seriousness of drug trafficking offences, and the determination of an appropriate sentence:[10]
[T] he quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (e.g. principal / sole trader, courier, handler, assistant, etc); the level of reward the defendant may have expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or a combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from the legislature’s prescription of relevant factors in s 44 of the [Controlled Substances] Act.
[10] R v Young (2016) 126 SASR 41 at [216] (Kourakis CJ, Vanstone and Stanley JJ agreeing); Cocks v The Queen [2022] SASCA 21 at [55] (Kourakis CJ, Lovell and Doyle JJA).

With these features in mind, Kourakis CJ considered that whilst a sentence in the range of four to seven years imprisonment will be appropriate for street level dealers who are motivated to a greater or lesser degree by profit, a more significant sentence will be required for offenders whose dealing can be categorised as mid-level.[11] His Honour said:[12]
Sentences approaching the 10 year maximum for the base level trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers.
[11] R v Young (2016) 126 SASR 41 at [62]-[66] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
[12] R v Young (2016) 126 SASR 41 at [68] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
The Director acknowledges that the standard provided for in R v Young is a flexible one, and that attention must always be paid to the circumstances of the particular defendant and his or her offending.[13] At the same time, and significantly for present purposes, the standard is directed to basic trafficking. Whilst it provides assistance to sentencing judges in respect of the aggravated form of the offence, the distinction Parliament has drawn between the basic and aggravated forms of the offence of trafficking cannot be ignored. It must be reflected in the sentences imposed.
[13] Cocks v The Queen [2022] SASCA 21 at [61] (Kourakis CJ, Lovell and Doyle JJA); Davidson v The Queen [2021] SASCA 130 at [27] (Doyle JA, Bleby JA and Stanley AJA).
Turning to the aggravating factor in the present case, it was not in dispute that at the time of his offending, the respondent was a fully patched member of the Nomads Motorcycle Club. Through his plea to aggravated trafficking, the respondent admitted that he committed the offence for the benefit of a criminal organisation. The sentencing judge found that the respondent was selling drugs for the Nomads, knowing that the money he provided back to that criminal organisation would be used for that organisation.
As the Director submitted, the 1% patch worn on their colours by members of the Nomads and other outlaw motorcycle gangs is, in effect, a public statement of a commitment by those clubs and their members to an ethos that directly challenges the social contract. It is common knowledge in the community that outlaw motorcycle gangs trade on fear, relying upon their reputation for violence as a means of achieving relative impunity for their anti-social and criminal activities.
Relevantly, it is appropriate for this Court to take notice of the fact that the criminal activities of these organisations include a very substantial involvement in trafficking methylamphetamine in Australia. This knowledge, together with the prevalence of methylamphetamine trafficking, and the societal harm it causes, can be gleaned from the various reports placed before this Court by the Director, as well as the Court’s empirical experience in such matters.[14]
[14] R v MJJ; R v CJN (2013) 117 SASR 81 at [83]-[84] (Kourakis CJ).
The relevance of an offender’s association with an outlaw motorcycle gang was considered by Vanstone J in R v Cekic:[15]
Next, I shall consider the submission made by counsel for Cekic that the Judge impermissibly had regard to his membership with the Finks motorcycle gang and the bad character of his co-offenders. As discussed, it is appropriate for the Judge to have regard to the factual background of the offending. Here, that included the appellants’ association with an outlaw motorcycle gang and its members. Identification with, and loyalty to, a violent criminal organisation is highly relevant to the fixing of an appropriate sentence, because it affects considerations of culpability, general and specific deterrence, punishment and rehabilitation. Indeed, the Judge in sentencing remarked:
Of course it is important to deter offences of serious violence by whomsoever they are committed. However in sentencing for offences of serious violence committed by offenders who are associated with outlaw gangs the element of general deterrence assumes greater relative importance because it is necessary to counter the violent culture of those gangs.
With respect, I agree with the Judge’s statement. Cekic’s membership of, and identification with, the Finks motorcycle gang speaks to his character, and more specifically to the likelihood of his reoffending and the prospects of his rehabilitation.
[15] R v Cekic & Ors [2016] SASCFC 26 at [30] (Vanstone J, Kelly J and David AJ agreeing).
Similar observations were made by Nicholson J in R v Pishdari:[16]
Where an offender is a member, nominee or even an associate of an OMCG, in the case of the latter where the person has some form of regular or ongoing association, the fact that the person may have limited criminal antecedents will need to be considered in that context.
Typically, when sentencing an offender, the extent and nature of their prior criminal record will be of assistance in assessing their character and propensities for the purpose of determining matters such as: whether leniency might be justified; the extent to which personal deterrence is to be a consideration; and prosects of rehabilitation. Each of the appellants, with the exception of Mitchell and Mackay, had relatively few serious criminal antecedents and this remains a factor in their favour. However, the fact that a person is a member, nominee or, depending on the circumstances, an associate of an OMCG may of itself support a conclusion that he or she is of bad character with poor prospects for rehabilitation and an enhanced need for personal deterrence and notwithstanding an otherwise moderate or good prior criminal record.
The fact that a person is prepared to associate themself with and participate in the ethos and activities of an OMCG says much about their character. It is common knowledge that many members of OMCGs see themselves as operating outside the law with a preparedness to participate in serious criminal offending, including acts of extreme violence. The fact that a person is prepared to participate in or be involved with such an organisation shows that person to be of very bad character, relevant to the sentencing considerations earlier identified. Each of the appellants in this matter, including those with relatively limited prior criminal records, had a sufficiently extensive association with the Nomads for this reasoning to apply.
[16] R v Pishdari & Ors (2018) 274 A Crim R 91 at [22]-[24] (Nicholson J, Kourakis CJ agreeing).
For the reasons explained in the two passages extracted above, the respondent’s membership of the Nomads was relevant to various of the sentencing objectives to be considered in sentencing the respondent.
Importantly, the respondent’s connection with the Nomads at the time of his offending was more than a mere association. The text messages extracted from his mobile phone demonstrated the extent of his commitment to the club, his direct line of communication with the president of the club, and his eagerness to work directly for him. The text messages also provided some indication of the significant scale of the enterprise operated by the Nomads, and in which the respondent willingly involved himself. Whilst the respondent was young at the time of his offending, he was not so young as to be unable to fully appreciate the nature of the enterprise in which he involved himself.
By the time he came to be sentenced, the respondent had left the Nomads, albeit as a result of being expelled due to his drug use. This was a significant consideration in assessing the respondent’s insight into his offending, and the progress he had made in his rehabilitation. However, it was of little significance in considering the level of criminality in the respondent’s offending. Nor did it gainsay the need to ensure that the respondent’s sentence achieved the objectives of general deterrence, punishment and denunciation, and adequately reflected the harm done to the community by drug trafficking and organised criminal activity more generally.
It was appropriate for the sentencing judge to make reference to the respondent’s progress towards rehabilitation as reducing, to some extent, the need for personal deterrence, and reducing the risk that he posed to the safety of the community. However, it was important not to overlook the need to impose a sentence that achieved the broader sentencing objectives mentioned in the preceding paragraph.
The sentencing judge acknowledged that the respondent’s trafficking offence was not only aggravated, but also consisted of conduct that was “a step above” the type of street level dealing that was the focus of the standard reflected in R v Young. The respondent was a mid-level dealer. He was selling to others who might themselves be classified as street level dealers, and through his communications with the president of the Nomads, was aware of, and involved himself in, the commercial aspects of the trafficking enterprise. This included discussion concerning the recruitment of others as potential drivers and runners. Whilst the respondent was no doubt partly motivated by a need to support his own drug addiction, he was nevertheless involved in a commercial enterprise. His living arrangements and lifestyle at the time of his offending were not at all lavish, yet that does not mean that his involvement did not have an element of commerciality in its motivation and nature.
In all of the circumstances, a starting point of four years – being the bottom of the range identified in R v Young – was erroneously low. A starting point of at least about six years was required, even having regard to the respondent’s progress towards rehabilitation and other personal circumstances.
Head sentence for possession of a prohibited weapon
As mentioned earlier, the sentencing judge imposed a sentence of one month imprisonment for the respondent’s offence of possessing a prohibited weapon. This was in respect of an offence that attracted a maximum penalty of a fine of $20,000, imprisonment for two years, or both.
A taser is not as inherently dangerous as many types of firearms. It has a limited range, and is not designed to be lethal. However, it is nevertheless a weapon that is potentially very dangerous. The respondent’s taser was located under his pillow, from which it may be inferred that he intended that it be readily available for use. It may also be inferred that he intended that it be available for use in connection with his drug trafficking. As Kourakis CJ observed in R v Violi:[17]
The choice to both engage in the drug trade and to do so with firearms is a deliberate one. Drug trading and manufacture can be engaged in without firearms, and firearms may be possessed by someone who is not a drug trafficker. The illegal possession of firearms by drug traffickers must be strongly deterred.
[17] R v Violi [2015] SASCFC 2 at [34] (Kourakis CJ, Bampton and Parker JJ agreeing).
Whilst these observations as to the need to deter the possession of weapons by drug traffickers were directed towards firearms, they are equally apposite to a weapon such as a taser. They apply a fortiori to the possession of weapons in the context of drug trafficking for an outlaw motorcycle gang.
The starting point of one month imprisonment for this offence was also erroneously low.
Non-parole period
Whilst not the subject of any independent challenge, the Director also criticised the non-parole period fixed by the sentencing judge. Her Honour started with a non-parole period of 23 months in respect of the aggregate head sentence of three years, five months and 17 days (after reduction for the guilty pleas, but before credit for time served in custody and on home detention bail).
A non-parole period of approximately 55 per cent of the head sentence was perhaps lenient. But we do not think it was, of itself, demonstrative of error. In combination with the other errors identified in these reasons, however, it contributed to what was an erroneously low sentence.
Credit for time served in custody and spent on home detention
Having imposed an aggregate head sentence of three years, five months and 17 days imprisonment, and having fixed a non-parole period of 23 months, the sentencing judge noted that the respondent had spent 14 days in custody and 19 months on home detention.
The judge took into account that the respondent had not breached his home detention bail. She referred to the “very positive” home detention compliance report that she had received, with the writer confirming that the respondent had been required to submit to ongoing drug and alcohol testing during the period of his bail, and that he had returned negative results on all tests. It appears that the respondent was required to submit to about four tests over an approximately 12 month period. The writer of the report also expressed the opinion that the respondent had responded well to supervision and had programs in place for the future; that he was fortunate to have a strong support base within his immediate family; and that he had been compliant with the terms of passes to leave the premises to which he had been bailed.
The judge said that “[o]verall, I will give you credit of one year”, stating that that “brings your final sentence to two years, five months and 17 days and a non-parole period of one year and one month.”
We note that there appears to have been a slip in her Honour’s calculations. Whilst her Honour made reference to one year’s credit, the judge gave the respondent one year credit on his head sentence, but only 10 months credit on his non-parole period.
In R v Tsonis,[18] the Full Court made it plain that, in the absence of some proper reason for doing otherwise, the sentencing court should allow day for day credit for time spent in custody. It is appropriate to proceed on the basis that the judge gave full credit for this time in custody, meaning that her Honour allowed a period of 11 months and 16 days in respect of the 19 months that the respondent spent on home detention bail. This corresponds to credit for approximately 60 per cent of the time spent on home detention bail.[19]
[18] R v Tsonis (2018) 131 SASR 416 at [69]-[71] (Lovell, Doyle and Hinton JJ).
[19] That is, an allowance of 11 months and 16 days in respect of the head sentence, being close to 60 per cent of the 19 months and 16 days spent on home detention; and 9 months and 16 days in respect of the non-parole period, being close to 50 per cent of the period spent on home detention.
In challenging the judge’s decision to afford one year credit, the Director commenced by acknowledging that the extent to which a defendant will receive credit for time spent on home detention bail is at the discretion of the sentencing judge; that there is no precise mathematical formula to be applied, and the amount of time allowed will depend on the facts of each case.[20] As the Court said in R v Tsonis:[21]
In the context of determining the extent of any credit to be given for time spent on home detention bail (as opposed to time spent in custody), the courts do exercise a very broad discretion having regard, inter alia, to the nature and extent of the conditions imposed upon the defendant, the imposition they represent for the defendant, and the defendant’s compliance with them.[22] In some cases the sentencing judge may quite appropriately give no credit at all for the time spent on home detention bail, although depending upon the length of time involved and other matters, such as those mentioned above, that will not always be appropriate.[23] And further, where credit is given, there is no formula for determining the extent of the credit to be given. While full credit (in the sense of day for day credit) will rarely if ever be appropriate, the permissible range will generally be quite broad.
[20] R v Franceschini (2015) 123 SASR 396 at [42] (Nicholson J, Bampton and Lovell JJ agreeing).
[21] R v Tsonis (2018) 131 SASR 416 at [86]-[88] (Lovell, Doyle and Hinton JJ).
[22] R v Franceshini (2015) 123 SASR 396 at [42]; R v Taylor [2016] SASCFC 54 at [19]-[20]; R v Zefi (2017) 129 SASR 161 at [96]-[97].
[23] R v Taylor [2016] SASCFC 54 at [31]-[35].
However, as the authorities footnoted in the above passage indicate, there are limits to the credit that may appropriately be afforded for time spent on home detention bail. The credit afforded must properly reflect the difference between time served in custody and time spent on home detention. Whilst the latter is undoubtedly a restriction upon an accused person’s freedom, it is significantly less so than time served in custody. Even accepting that the sentencing judge had a broad discretion, allowing 60 per cent credit for the time spent by the respondent on home detention bail was inappropriately generous.
It is to be accepted that the respondent’s compliance with home detention was good, and that this was a factor the sentencing judge was entitled to take into account. However, as the appellant points out, the strictness of the respondent’s home detention regime was also properly a matter to be taken into account, and it appears from the home detention compliance report that a degree of liberty was afforded to the respondent. He was permitted to work until he was required to care for his grandfather full time, after which he was granted passes to take his grandfather to his appointments several times a week. It appears that he was also granted several non-standard passes which allowed him to attend family gatherings at his mother’s house.
In all the circumstances, we consider that the judge erred in affording one year credit for the time the respondent spent in custody (14 days) and on home detention bail (19 months).
Exceptional circumstances warranting suspension
The offence of aggravated trafficking contrary to s 32(3) of the Controlled Substances Act is a “serious and organised crime offence” as defined in s 96(9) of the Sentencing Act. Accordingly, pursuant to ss 96(3)(c) and 96(6)(a), a sentence of imprisonment imposed for aggravated trafficking may not be suspended unless the sentencing court is satisfied that exceptional circumstances exist for doing so.
In R v Skinner,[24] Doyle J addressed the meaning of “exceptional circumstances”:[25]
As to what is meant by “exceptional circumstances”, I commence by emphasising that while some consideration of, and elaboration upon, the words chosen by Parliament may assist in applying the test, the test remains one solely referrable to those words. The test is, and is only, whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exist exceptional circumstances warranting suspension of the sentence of imprisonment.
[24] R v Skinner (2016) 126 SASR 120.
[25] R v Skinner (2016) 126 SASR 120 at [87] (Doyle J, Kelly J agreeing).
Having emphasised the importance of not applying a gloss upon the words used by Parliament, and after considering the authorities and the statutory context,[26] his Honour offered the following indication of what those words connote:[27]
While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare.
The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender, or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).
Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba). It will depend upon the facts of the particular case.
[26] Which was relevantly similar to the context in which those words are now used in s 96(3)(c) and 96(6)(a) of the Sentencing Act.
[27] R v Skinner (2016) 126 SASR 120 at [95]-[97] (Doyle J, Kelly J agreeing) (omitting citations).

Whilst these observations have been applied in subsequent cases, it is important to appreciate that “exceptional circumstances” connotes something more than circumstances which are outside of the range of circumstances ordinarily or normally encountered. The phrase connotes circumstances which not only meet this description, but which also justify treating the case as one which falls outside the mischief that Parliament was intending to address by enacting a general proscription against suspended sentences for serious and organised crime offences. As the Full Court said in R v Yavuz,[28] when applying R v Skinner:[29]
Special or exceptional circumstances are therefore those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made.
[28] R v Yavuz (2018) 130 SASR 231.
[29] R v Yavuz (2018) 130 SASR 231 at [115] (Kourakis CJ, Blue and Hinton JJ); see also Zefi v The Queen [2021] SASCA 15 at [36]-[38] (Doyle JA, Kelly P and Bleby JA agreeing), and R v Jones [2022] SASCA 105 at [40]-[45] (Lovell JA, David JA and Mazza AJA).
In addressing the issue of suspension, the sentencing judge commenced by noting that because the respondent’s drug trafficking was a serious and organised crime offence, the Sentencing Act prohibited her from making a home detention order;[30] but added that she remained entitled to suspend the respondent’s sentence of imprisonment if satisfied that exceptional circumstances existed.[31]
[30] Sentencing Act, s 71(2)(b)(iii).
[31] Sentencing Act, ss 96(3)(c) and 96(6).
In finding that special circumstances did exist, her Honour relied upon the combination of the respondent’s relatively young age, his early guilty pleas, his contrition and remorse, his efforts to rehabilitate himself (by abstaining from drugs, ceasing his affiliation with the Nomads, gaining insight into the harm drugs had done to his life, re-establishing positive relationships with his family, and engaging with counselling and psychological support), and his role in caring for his grandfather.
After mentioning the prosecutor’s emphasis upon the seriousness of the offending, and noting the difficult balancing exercise involved in arriving at an appropriate sentence, the judge returned to the progress the respondent had made in his rehabilitation over the period of his home detention, describing the respondent as a “vastly different person from the one 19 months ago”. Her Honour summarised her basis for finding exceptional circumstances:
In light of the significant changes in you over the last 19 months, I do not consider you pose any significant risk to the safety of the community. Overall, I do think the steps you have taken since you were arrested for this offending are exceptional. You have stayed away from the motorcycle gang. You have insight into the harm drugs have done to you. You have spent a considerable time on home detention and made the most of that time. In my view, sending you to gaol now may send a strong message to other like-minded drug dealers involved in motorcycle gangs but it would also drag you a long way back from where you are now. It would undo a lot of the good work that you have put in. I do not think that it is in your interest, nor do I think it is in the community’s present or long-term interest. I do want to make it clear though, if you had not taken the steps that you have taken and achieved what you have achieved in the last 19 months, I would not be considering this at all. I have found that exceptional circumstances do exist and I will suspend the sentence of imprisonment, which means I am not sending you to gaol today.
We are not satisfied that the matters relied upon by the sentencing judge warranted a conclusion of exceptional circumstances.
Whilst the respondent was relatively young at the time of his offending, he was not amongst the very youngest of the people who come before the courts charged with drug trafficking. He also had a prior history of offending, and, indeed, had previously received the benefit of a suspended sentence.
His early pleas, and contrition and remorse, while relevant and commendable, were hardly exceptional.
The matter which appears to have been most influential in the sentencing judge’s mind was what she described as his “actual steps towards rehabilitation”. It is to be accepted that demonstrated rehabilitation may contribute to a finding of exceptional circumstances. However, the evidence of rehabilitation in the present case was relatively limited. It was confined to the respondent’s abstinence from drugs (as evidenced by about four negative tests over an approximately 12 month period); the cessation of his membership and any affiliation with the Nomads (noting that this was precipitated by his being expelled from the club, rather than voluntarily ceasing his membership); and his engagement with counselling and psychological support. Whilst the first two of these steps were again relevant and commendable, they were but the starting point for the respondent’s rehabilitation. His engagement with counselling and psychological support indicated some progress towards rehabilitation. However, we do not think this engagement can be taken as having demonstrated that the respondent had achieved rehabilitation, as his counsel suggested on appeal. The most that could be said is that he had taken some encouraging steps towards rehabilitation, and that he had reasonable prospects of successful rehabilitation.
In our view, it is necessary to be cautious in assessing the extent of an offender’s rehabilitation, and in particular in finding exceptionality in an offender’s progress in this respect. It is one thing to conclude that an offender’s progress towards rehabilitation supports a finding of good reason to suspend under s 96(1) of the Sentencing Act; it is quite another thing to find that it supports a finding of exceptional circumstances warranting suspension under s 96(6) of the Act.[32]
[32] See R v Yavuz [2018] SASCFC 24 at [115] (Kourakis CJ, Blue and Hinton JJ), noting the distinction to be drawn between good reason to suspend and exceptional circumstances warranting suspension.
Further, and in any event, the exceptionality of the above circumstances, and hence the appropriateness of suspension, must also be considered in the context of the seriousness of the offending and the importance of general deterrence in offending such as the present.[33] Here, for the reasons set out earlier, the respondent’s trafficking offending was very serious indeed. He was a mid-level dealer involved in commercial drug trafficking for an outlaw motorcycle gang. There was a need for significant general deterrence. We do not think the matters relied upon by the sentencing judge, including the respondent’s steps towards rehabilitation, were of a nature or degree that took this case outside the range of cases that Parliament intended would be addressed by its general prohibition against suspending sentences of imprisonment for serious and organised crime offences.
[33] R v Yavuz [2018] SASCFC 24 at [119] (Kourakis CJ, Blue and Hinton JJ).
Principles governing a Crown appeal
Having identified the errors described above in the sentence imposed, it necessary to address whether this is an appropriate case in which to grant the Director permission to appeal.
The principles governing the grant of permission to appeal in a Crown appeal against sentence have been considered in a number of decisions of this Court, including most recently in R v Yaroslavceff.[34] As the Court summarised in that case,[35] permission to appeal will only be granted in rare and exceptional cases. Manifest inadequacy in the sentence imposed will not, of itself, justify permission to appeal. However, a grant of permission may be appropriate in order to determine a matter of principle, to establish or maintain adequate sentencing standards, or to correct idiosyncratic views expressed by individual judges regarding particular approaches to offending or sentencing. It may also be appropriate in order to correct a sentence which is so inadequate that it bespeaks error of principle, or would undermine public confidence in the administration of justice.
[34] R v Yaroslavceff [2022] SASCA 123.
[35] R v Yaroslavceff [2022] SASCA 123 at [29]-[30] (Livesey P and David JA), [69]-[70] (Doyle JA); see also the authorities referred to therein, including R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ) and R v Nemer (2003) 87 SASR 168 at [23]-[27] (Doyle CJ).
In deciding whether to grant permission to appeal, the public interest in intervening in order to achieve one or more of the above objectives must be weighed against the distress and anxiety for a defendant of being twice vexed as a result of facing the prospect of being re-sentenced by an appeal court.[36] In a case such as the present, where the defendant has received a suspended sentence and faces the prospect of an immediate custodial sentence upon any resentencing, that hardship is particularly acute. Noting the devastating impact of such a reversal of fortune, the appellate courts have shown a particular reluctance to intervene in such cases.[37]
[36] Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [14] (French CJ, Gummow, Hayne, Kiefel and Bell JJ); R v Yaroslavceff [2022] SASCA 123 at [29] (Livesey P and David JA), [69], [72] (Doyle JA).
[37] R v Hicks (1987) 45 SASR 270 at 273 (King CJ); R v Harkin (2011) 109 SASR 334 at [24] (Gray and Sulan JJ); R v Kong (2013) 115 SASR 425 at [102] (Kourakis CJ, Sulan and David JJ); R v Buttigieg (2020) 352 FLR 170 at [42] (Lovell J, Kourakis CJ and Nicholson JJ agreeing); R v Yaroslavceff [2022] SASCA 123 at [74] (Doyle JA).
The errors identified in the sentencing judge’s approach in the present case raise matters of sentencing principle. The Director’s challenge to the head sentence imposed for the respondent’s trafficking offence exposed error in the judge’s application of the standard in R v Young to offending that is aggravated and “a step above” street level dealing. His challenge to the credit afforded for time spent on home detention exposed error in the judge’s approach to the determination of an appropriate allowance. And his challenge to the judge’s decision to suspend the head sentence ultimately imposed exposed error in the judge’s approach to what may constitute “exceptional circumstances” for the purposes of suspending a sentence of imprisonment in respect of a serious and organised crime offence. Further, and in any event, the combination of these errors resulted in a sentence that was so inadequate, both in the length of the head sentence, and in the decision to suspend, that intervention would be justified in order to maintain appropriate sentencing standards and ensure public confidence in the administration of justice.
In deciding to intervene, we have not overlooked the significance of the hardship likely to be associated with exposing the respondent to the risk of a substantial period of immediate custody. It is very unfortunate that a man who had spent 19 months on home detention, and who then received a suspended sentence, must face that prospect. However, there is no suggestion of any prosecutorial delay in this matter. And, for the reasons given, the sentence imposed was not only infected by errors of principle, but also so low as to require intervention in order to maintain appropriate sentencing standards and ensure public confidence in the administration of justice.
It is appropriate that this Court intervene, and proceed to re-sentence the respondent.
Re-sentencing
In re-sentencing the respondent, we have had regard to all of the facts and circumstances recounted in these reasons.
In respect of the aggravated trafficking offence, we would commence with a head sentence of six years imprisonment. Whilst the objective circumstances of his offending might have justified a higher sentence, we consider that there is some room for leniency given the respondent’s personal circumstances, and in particular his young age and the progress towards rehabilitation that he has made since his offending. After a reduction of close to 15 per cent for his early plea of guilty, that gives a sentence for this offence of five years and two months imprisonment.
For the offence of possessing a prohibited weapon, we would commence with a head sentence of three months imprisonment. After a reduction of 30 per cent for his early plea of guilty, that gives a sentence for this offence of two months and three days imprisonment.
In our view, it was appropriate that these two sentences be made partially concurrent, giving an aggregate sentence of five years, and three months imprisonment. In determining an appropriate non-parole period, the respondent’s personal circumstances carry greater weight. At the same time, it is relevant that the respondent has offended previously, and has had the benefit of an earlier suspended sentence. We would fix a non-parole period of three years.
Prior to his initial sentencing, the respondent spent 14 days in custody, and spent 19 months on home detention. As explained earlier in these reasons, while his home detention conditions were not particularly stringent, he complied with all of his obligations. We consider it appropriate to give the respondent five months credit, reducing his head sentence to four years and 10 months imprisonment, with a non-parole period of two years and seven months. We would make this a single sentence under s 26 of the Sentencing Act, to commence upon the respondent being taken into custody.
For the reasons given earlier, we are not satisfied that the matters relied upon by the respondent established exceptional circumstances that warranted suspension of his sentence of imprisonment. While his personal circumstances, and in particular his progress towards rehabilitation during his 19 months on home detention bail, were apt to excite some sympathy, they were not exceptional in the relevant sense.
To suspend the respondent’s sentence of imprisonment would be to undermine, rather than give effect to, Parliament’s intention in enacting ss 96(3) and (6) of the Sentencing Act, and expressly conditioning the discretion to suspend a sentence of imprisonment for offending such as the present upon the existence of exceptional circumstances.
For the reasons given, we grant the Director permission to appeal and allow the appeal. We re-sentence the respondent in the terms indicated.